In Depth

The state’s intermediate appellate court has reversed a southern Indiana judge’s ruling that a boyfriend should
retain visitation rights over an ex-girlfriend’s child. It ruled that the finding is contrary to law because lawmakers
didn’t allow for that type of circumstance to warrant visitation.

A unanimous decision came today in K.S. v. B.W., No. 22A05-1102-DR-79, a case from Floyd Superior Judge Susan Orth and Magistrate
Judge Daniel B. Burke, Jr. The case involved a child, M.M., born in September 2002. The child’s biological father died
the following spring and for about three years starting in 2004, the mother K.S. dated B.W., living with him in West Virginia.
The child called B.W. “daddy” and “dad” during that time and the boyfriend was listed on M.M.’s
school enrollment papers as her dad. After the two broke up in September 2007, the mother allowed for her ex-boyfriend to
maintain regular visits even after she married another man in 2009 and moved back to Indiana.

B.W. filed a motion in September 2009 to establish him as a de factor parent and allow for parenting time, but the mother
moved to dismiss that motion for failure to state a claim. She stopped allowing her ex-boyfriend visitation about eights months
later.

The trial court last year denied the mother’s motion to dismiss and B.W.’s request to be named a de facto parent,
but granted his request to visit with the child every other weekend and ordered the parties meet halfway between Indiana and
West Virginia to exchange the girl. The court also denied K.S.’s request that B.W. pay her attorney fees, and early
this year the court denied her requests that the judgment be stayed and errors corrected.

In the six-page decision Wednesday, Judge Melissa May wrote that the trial court’s decision was contrary to Indiana
Code 31-9-2-25.5 defining a de facto custodian. Specifically, that statute defines someone in that role as the primary caregiver
and financial support-giver of a child residing with him or her for at least six months if the child is younger than 3 and
at least one year if the child is at least 3 years old. The statute applies only to custody proceedings after a paternity
determination, actions for child custody or modification of custody, and temporary placement of a child in need of services
taken into custody.

The Court of Appeals also cited Indiana Supreme Court caselaw holding that the statute only applies to custody and is silent
on visitation. One of the most recent decisions on that came in K.I. ex rel. J.I. v. J.H., 903 N.E. 2d 453, 461-62
(Ind. 2009), and the Court of Appeals determined that the reasoning in K.I. controls in this situation.

“We must accordingly reverse the grant of visitation to B.W. because (he) is not M.M.’s father,” Judge
May wrote. “While he was an important part of M.M.’s life at one time, Indiana does not provide for an order of
visitation under this circumstance.”

The appellate panel affirmed the lower court’s denial of K.S.’s request for attorney fees, which she had argued
should be awarded because B.W.’s claims were “unreasonable, groundless, and frivolous.” But the appellate
court determined state statute allows for attorney fees to go to a “prevailing party” and the trial court was
correct in denying those fees because K.S. didn’t prevail at trial.

Reading the court’s ruling, Indianapolis attorney Andrew Soshnick – past chair of the Indiana State Bar Association’s
Family Law section – found the attorney fee aspect of the case interesting since the appeals court found the trial court
had wrongly ruled against the mother on the visitation issue and in that reversal essentially declared her as “prevailing”
after the fact.

He noted that the attorney fee statute, Indiana Code 34-52-1-1(b)(2) goes to meritless claims, and that while the mother
could argue that B.W. brought a meritless claim because of what state law says, his argument wasn’t without merit. He
suggested that the trial and appellate courts might not have wanted to assess attorney fees against the ex-boyfriend because
he had been such an important part of the child’s life at one point before she remarried.

“Given the discretion in applying the fee statute, and the politics of the situation, it is not surprising that the
fee denial was upheld,” Soshnick said.

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